Opinion
No. 1 CA-CR 12-0621
03-28-2013
STATE OF ARIZONA, Appellee, v. CHARLES TAYLOR CROCKETT, Appellant.
Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Bruce Peterson, Office of the Legal Advocate by Frances J. Gray, Deputy Legal Advocate Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-006752-003
The Honorable Roger E. Brodman, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix Bruce Peterson, Office of the Legal Advocate
by Frances J. Gray, Deputy Legal Advocate
Attorneys for Appellant
Phoenix HALL, Judge ¶1 Charles Taylor Crockett (defendant) appeals from his convictions and the sentences imposed. For the reasons set forth below, we affirm. ¶2 Defendant's appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, he was unable to find any arguable grounds for reversal. Defendant filed a supplemental brief raising numerous issues. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶3 We review the entire record for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). ¶4 Defendant was charged by indictment with one count of burglary in the first degree, a class two dangerous felony, two counts of armed robbery, class two dangerous felonies, two counts of kidnapping, class two dangerous felonies, two counts of aggravated assault, class three dangerous felonies, one count of misconduct involving weapons, a class four felony, and one count of theft of means of transportation, a class three felony. The State alleged numerous aggravating factors (threatened infliction of serious physical injury, threatened use of a deadly weapon, presence of an accomplice, expectation of pecuniary gain, emotional and financial harm to the victims, previous conviction of a felony, and age of the victims) and that defendant had four historical prior felony convictions. ¶5 The following evidence was presented at trial. In the predawn hours of May 26, 2011, W.H. and J.H. (the victims) were at home asleep in their bedroom. They were awakened by two men in their bedroom, who restrained them and bound them with zip ties. One of the men held a handgun. The intruders told them "Don't move and you won't get hurt." The victims believed that their lives were in danger. ¶6 After binding the victims, the intruders proceeded to gather numerous valuables from the victims' home, including cash, coin collections, and guns. When the intruders finished, they drove away in the victims' car and another vehicle. ¶7 After the intruders left, J.H. slipped her hands free and contacted the police to report the home invasion. During the course of the subsequent police investigation, Officer Hall of the Phoenix Police Department was charged with finding defendant, whose name had surfaced as a possible suspect. On May 28, 2011, Officer Hall located defendant in Gilbert and began surveillance of the surrounding area. Defendant left a vehicle in the early evening and the officer observed a backpack inside the car. Defendant was carrying another backpack when Officer Hall contacted him later that evening. After taking defendant into custody, Officer Hall took possession of both backpacks. When the contents of the backpacks were examined, the items were identified as the property of the victims. ¶8 Travis Correia testified that he and defendant committed the home invasion. Another accomplice, Tausha Roberts, drove defendant and Correia to the victims' neighborhood, waited in her vehicle while the men entered the home and collected the victims' belongings, and then drove to the victims' home where the men placed several laundry baskets of valuables in her car. Correia pled guilty to burglary in the first degree, armed robbery and kidnapping and, as part of the plea, agreed to testify at defendant's trial. Correia testified that defendant loaded a blue backpack with burglary tools, zip ties, and a pistol and brought it to the victims' home. After the men arrived at the victims' home, Correia used a screwdriver to pry back the screen on a screen door and was then able to unlock the dead bolt and handle lock. The interior door was unlocked and the men entered the home. ¶9 Defendant entered the victims' bedroom first and shouted "Don't fucking move." Correia zip-tied W.H. and defendant zip-tied J.H. After locating the victims' keys, the men emptied the victims' gun safe and floor safe. They collected all the valuables they could find and left the victims' home. Defendant drove the victims' vehicle while Correia left in Roberts' car. ¶10 After a six-day trial, the jury found defendant guilty of: burglary in the first degree, two counts of armed robbery, two counts of kidnapping, two counts of the lesser-included offense of aggravated assault, misconduct involving weapons, and theft of a means of transportation. During the aggravation stage, the jury found multiple aggravating factors, including that the victims are over 65 years of age, the presence of an accomplice, and that the offenses were committed for pecuniary gain. ¶11 After holding an evidentiary hearing on defendant's alleged priors and taking the matter under advisement, the trial court issued a minute entry ruling finding the State proved "beyond a reasonable doubt" that defendant has three prior felony convictions. The trial court further found that only one of the three convictions constitutes a historical prior felony conviction for sentencing purposes. At sentencing, the trial court imposed aggravated sentences for the crimes against J.H. to run consecutive to aggravated sentences for the crimes against W.H., resulting in a combined sentence of thirty-one years imprisonment. ¶12 Defendant first contends that the trial court erred by permitting the State to introduce a pen pack to prove he is a prohibited possessor. Specifically, defendant argues that the evidence was inadmissible because it pertained to "other crimes, wrongs, or acts." Pursuant to Arizona Rule of Evidence 404(b), "evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." ¶13 A "prohibited possessor," as defined in Arizona Revised Statutes (A.R.S.) section 13-3101(A)(7)(b) (2010), and relevant here, is a person "[w]ho has been convicted . . . of a felony . . . and whose civil right to possess or carry a gun or firearm has not been restored." The trial court permitted the State to introduce as evidence a redacted version of a pen pack that identified defendant as the person found guilty of an unspecified felony. This evidence was not admitted to prove defendant's character. Instead, it was introduced to prove "the existence of the underlying crime or conduct included by the legislature as an element of the crime charged." State v. Geschwind, 136 Ariz. 360, 363, 666 P.2d 460, 463 (1983). "In such a situation, evidence of the underlying crime or specified conduct cannot be precluded as irrelevant or unfairly prejudicial" because "the underlying criminal activity is not distinct and independent; rather, it is an integral part of the crime with which appellant was charged." Id. (internal quotations omitted). Therefore, the evidence is not subject to a Rule 404(b) analysis and the trial court did not err by admitting the pen pack evidence. ¶14 Defendant next contends that the trial court erred by denying his Arizona Rule of Criminal Procedure 20 motion for a judgment of acquittal on the counts of misconduct involving weapons and armed robbery. Defendant argues that the charge that he used a weapon during the home invasion was not supported by substantial evidence. ¶15 We review the sufficiency of the evidence de novo, State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011), and view the evidence at trial in the light most favorable to sustaining the jury's verdict. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). Because credibility is strictly a jury determination, we neither reweigh the trial evidence nor reassess the credibility of the witnesses. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). We resolve any conflicts in the evidence in favor of sustaining the verdict. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). "Substantial evidence, Rule 20's lynchpin phrase, is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." West, 226 Ariz. at 562, ¶ 16, 250 P.3d at 1191 (internal quotations and citations omitted). On appeal, we reverse the denial of a Rule 20 motion only if we find a "complete lack of probative evidence supporting the verdict." Girdler, 138 Ariz. at 488, 675 P.2d at 1307. ¶16 Here, there was substantial evidence to withstand defendant's Rule 20 motion. Although W.H. reported that he did not see a handgun during his initial interview with police following the home invasion, both victims testified at trial that one of the intruders used a handgun. In addition, defendant's accomplice testified that he saw defendant pack a handgun in his backpack along with burglary tools. Therefore, the trial court did not err by denying defendant's motion for a judgment of acquittal on the counts of armed robbery and misconduct involving weapons. ¶17 Defendant also argues, more generally, that there was insufficient evidence to support his convictions. Specifically, he argues that his physical appearance does not match the victims' descriptions of the intruders. ¶18 We construe this argument as a claim that defendant's convictions were against the weight of the evidence. See Ariz. R. Crim. P. 24.1(c)(1) (permitting the trial court to grant a new trial if the "verdict is contrary to law or to the weight of the evidence"). A conviction is contrary to the weight of the evidence "only if the evidence was not sufficient to allow the jury to find beyond a reasonable doubt" that defendant committed the charged crimes. State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984). ¶19 Neither victim identified defendant as an intruder before or at trial. Both victims acknowledged that they have experienced vision loss and explained that the lighting conditions at the time of the home invasion were dim. Further, the victims gave conflicting descriptions of the intruders. Nonetheless, there was sufficient evidence to support the jury's finding that defendant was one of the perpetrators of these crimes. Defendant was found, at the time of his arrest, with the victims' stolen property on his person and in his vehicle. In addition, his accomplice gave detailed testimony implicating defendant as one of the intruders. ¶20 Next, defendant argues that the prosecutor committed misconduct during closing arguments. Specifically, defendant claims the prosecutor impermissibly vouched while discussing the trial evidence. As support for his claim, defendant cites five incidents in which the prosecutor made comments involving the phrases "I anticipate defense counsel is going to argue," "I think the evidence has proven," and "I think the evidence shows." ¶21 "Two forms of impermissible prosecutorial vouching exist: (1) when the prosecutor places the prestige of the government behind its witnesses, and (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." Bible, 175 Ariz. at 601, 858 P.2d at 1204. Additionally, "a lawyer is prohibited from asserting personal knowledge of facts in issue before the tribunal unless he testifies as a witness." Id. "[W]e examine, under the circumstances, whether the jurors were probably influenced and whether the statement probably denied [d]efendant a fair trial." Id. "The focus is on the fairness of the trial, not the culpability of the prosecutor." Id. "Prosecutorial misconduct sufficient to justify reversal must be so pronounced and persistent that it permeates the entire atmosphere of the trial." State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (internal quotation and citation omitted). ¶22 Although the prosecutor's personal beliefs are irrelevant, the statements did not rise to the level of impermissible vouching. The comments did not place the prestige of the government behind any witnesses or suggest to the jury that information not presented supports the testimony of the witnesses. Rather, the prosecutor used the term "I believe" when he could have easily, and more appropriately, stated "the evidence shows." None of the prosecutor's statements could have inappropriately influenced the jury and defendant was not denied a fair trial. ¶23 Next, defendant argues that the State "obtained" a conviction by "knowing[ly] us[ing] perjured testimony." Defendant argues that his accomplice, Correia, initially lied to police and "it is hard to determine if [Correia] lied in the [free] talk or in the trial court." ¶24 A prosecutor is permitted to call witnesses that have made prior inconsistent statements. See State v. Ferrari, 112 Ariz. 324, 334, 541 P.2d 921, 931 (1975). "Contradictions and changes in a witness's testimony alone do not constitute perjury." Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991). Absent a showing that the prosecutor was aware of the witness giving false testimony, the credibility of witnesses is for the jury to determine. See State v. Rivera, 210 Ariz. 188, 194, ¶ 28, 109 P.3d 83, 89 (2005). ¶25 Here, the State elicited evidence of Correia's inconsistent statements on direct examination and Correia admitted that he lied to the police. Nothing in the record suggests that the prosecutor knew Correia lied at trial. Indeed, defendant argues it is "hard to know" whether Correia lied during his initial statements to police or at trial. The jury was aware that Correia's trial testimony was inconsistent with his previous statements to police and it was for the jury, as fact-finder, to determine his credibility. ¶26 Defendant also asserts that the trial court erred by finding he has a historical prior felony conviction. Defendant argues that the trial court applied the wrong burden of proof, a preponderance of the evidence standard, in making its finding. Additionally, defendant contends that the finding is unsupported because the State failed to present fingerprint evidence to match defendant's fingerprints to the pen packs introduced at the priors hearing. ¶27 "In order to prove a prior conviction, the state must submit positive identification establishing that the accused is the same person who previously was convicted, as well as evidence of the conviction itself." State v. Cons, 208 Ariz. 409, 415, ¶ 16, 94 P.3d 609, 615 (App. 2004). "The proper procedure for establishing a prior conviction is for the state to submit a certified copy of the conviction and establish that the defendant is the person to whom the document refers." Id. ¶28 Contrary to defendant's claim that the trial court applied a preponderance of the evidence burden of proof, the court's minute entry ruling specifically states that the court found the State proved defendant's three priors "beyond a reasonable doubt," but that only one constituted a historical prior felony for sentencing purposes. Furthermore, as noted by the trial court, the pen packs contained specific identifying information such as defendant's full name and birth date, photograph, and referenced defendant's convictions under other case numbers. Therefore, there is sufficient evidence to support the trial court's finding that defendant has a historical prior felony conviction. See State v. Kinney, 225 Ariz. 550, 558, ¶ 26, 241 P.3d 914, 922 (App. 2010) (concluding evidence of a prior conviction "that contained [the defendant's] name and birth date" was sufficient to prove the defendant was the person convicted, absent "any evidence casting doubt on the identification"). ¶29 Finally, defendant argues that the evidence seized from his backpacks at the time of his arrest was inadmissible because it was seized in violation of his Fourth Amendment rights. Defendant never filed a motion to suppress this evidence, and we therefore review for fundamental error only. See Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 239, ¶ 13, 282 P.3d 437, 440 (App. 2012) ("[W]hen a party fails to object properly, we review solely for fundamental error."). Under this type of review, the defendant bears the burden of proving that a fundamental error occurred and that the error caused prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19- 20, 115 P.3d 601, 607 (2005). ¶30 There is no evidence in the record pertaining to this claim. Based on this record, defendant has failed to meet his burden of establishing error, let alone fundamental error. ¶31 We have read and considered counsel's brief and have searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentences imposed were within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offenses for which he was convicted. ¶32 After the filing of this decision, counsel's obligations pertaining to defendant's representation in this appeal have ended. Counsel need do no more than inform defendant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. Accordingly, defendant's convictions and sentences are affirmed.
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PHILIP HALL, Judge
CONCURRING: _____________
MARGARET H. DOWNIE, Presiding Judge
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MAURICE PORTLEY, Judge